Previously, we reported on the U.S. Fish and Wildlife Service’s (“USFWS”) issuance of the final ESA Compensatory Mitigation Policy (“ESA-CMP”), the first comprehensive treatment of compensatory mitigation under the Endangered Species Act.  Endangered Species Act Compensatory Mitigation Policy, 81 FR 95316 (Dec. 27, 2016).  The policy formalizes the Services’ shift from project-by-project to landscape-scale approaches to planning and implementing compensatory mitigation.  We also reported on the Services’ issuance of a final revised Mitigation Policy in November 2016 intended to serve as an overall umbrella strategy under which more detailed Service sub-policies or guidance documents covering specific activities would be issued.  U.S. Fish and Wildlife Service Mitigation Policy, 81 FR 83440 (Nov. 21, 2016).  Both policies focus on using mitigation to achieve a “net conservation benefit.”

Last week, on November 6, 2017, the Services requested public comment on the portions of the Mitigation Policy and the ESA-CMP relating to the “net conservation benefit” goal.  Mitigation Policies of the U.S. Fish and Wildlife Service; Request for Comments, 82 FR 51382 (Nov. 6, 2017).  According to the Services, the comments received on both policies will inform whether and how the Services will revise the policies.  Specifically, the USFWS asked that comments “specifically address the advisability of retaining or removing references to net conservation gain from the Services’ overall mitigation planning goal within each policy.”  Commenters may submit comments to one or the other docket based on the specific policy of concern (the Mitigation Policy or the ESA-CMP).  The deadline for submitting these comments is January 5, 2018.  This notice begins the process of implementing certain of the actions outlined for the Services in the Department of Interior’s Final Report: Review of the Department of the Interior Actions that Potentially Burden Domestic Energy (82 FR 50532), released on November 1, 2017 and prepared to comply with Executive Order 13783, Promoting Energy Independence and Economic Growth, March 28, 2017.